Friday, June 11, 2004

In typically ham-fisted fashion, Gov. Rick Perry has unnecessarily raised questions about the independence of the Texas Supreme Court. The governor recently told a private meeting of about 30 people from Highland Park and University Park in Dallas that he was confident the Texas Supreme Court would reject any challenge to the state's school finance system. The governor's remarks were out of line not just because they suggest meddling in Supreme Court business, but because he has power to retaliate politically, even if he has no intention of doing so.

Judicial integrity could be threatened by Perry comment

Editorial Board, AMERICAN-STATESMAN STAFFJune 11, 2004

In typically ham-fisted fashion, Gov. Rick Perry has unnecessarily raised questions about the independence of the Texas Supreme Court.

The governor recently told a private meeting of about 30 people from Highland Park and University Park in Dallas that he was confident the Texas Supreme Court would reject any challenge to the state's school finance system.

According to a report in Wednesday's edition of The Dallas Morning News, based on an interview with John Carpenter, president of the Highland Park school board, Perry told the group, "Well, I've talked to my attorney, and I've also appointed five of the justices of the Supreme Court and helped the sixth get elected, so I'm confident that the state is going to win."

The governor's spokesmen said Perry based his prediction on his knowledge of the justices' judicial philosophy, not personal discussions with them.

Anyone is free to predict what a court will do. But Perry's predictions carry weight because he actually appointed three of the court's nine members, Scott Brister, Wallace Jefferson and Michael Schneider; he soon will appoint a replacement for Chief Justice Tom Phillips, who is retiring; and he has strongly pushed the candidacy of Paul Green, who is expected to win a seat on the court in the November election. (Schneider and Justice Priscilla Owen have been nominated to the federal bench, and Perry will appoint their successors if they are confirmed by the U.S. Senate.)

The public school case is not theoretical: A major lawsuit challenging the school funding system is pending in state district court in Austin, and it almost certainly will end up before the Texas Supreme Court on appeal. In fact, it already has once, but was returned to district court for trial. Given the governor's comments, one side might ask several justices to recuse themselves when the case returns to the Supreme Court.

The governor's remarks were out of line not just because they suggest meddling in Supreme Court business, but because he has power to retaliate politically, even if he has no intention of doing so.

Although Texas judges are often first appointed to the bench by the governor to fill a vacancy, they do not enjoy lifetime tenure, as do federal judges appointed by the president and confirmed by the U.S. Senate. Rather, appointed Texas judges must then run for election and re-election. Just this spring, one Texas Supreme Court justice, Steven Wayne Smith, was beaten in the GOP primary by Green with Perry's support. Smith earned defeat on his own merits, but his example can't be lost to other justices, especially those appointed by Perry -- cross him and he can come after them.

Fortunately, there's no immediate indication that Perry's appointees to the court will not maintain their judicial independence and integrity. But if any public doubt arises on that score regarding the school finance case, we can thank a governor whose indiscreet comment invited questions about the court's independence and objectivity.